Changes to the Family Law Act; will it affect my parenting case?

Changes to the Family Law Act; will it affect my parenting case?

Changes to the Family Law Act

As of the 6th of May 2024, there are a number of significant changes to the Family Law Act that will come into effect, which are likely to impact upon the way a Court will deal with parenting matters.

Clients will want to know; What do the new changes of the Family Law Act now say? How do the new changes to the Act affect me? How will they affect me if I already have court proceedings in place?

As the changes are new and are soon to come into effect, it is not entirely clear how the Courts will deal with the changes when dealing with decisions, and it will be a matter of ‘watch this space’, as we will be largely guided by how Judicial officers will make decisions under the new Family Law Act.

Being a legal practitioner who practiced in Family Law before the 2006 Shared Parental Responsibility changes, it is easy to imagine that the Court will simply go back to the way things were before the ‘shared parenting’ changes came in, which ultimately focussed on ‘what is in the child’s best interests’.

If you already have court proceedings on, the new Law will apply to your case, unless your Final Hearing has already started.  This will mean that some consideration to how affidavit material is drafted and the terms of reference given to a Family Report writer, due to the changes coming into effect.

What are the new changes to the Family Law Act?

Removal of the presumption of ‘equal shared parental responsibility

Up until 6 of May 2024, there is and has been a presumption that both parties are ‘equally responsible’ for the decisions which affect the children’s long term care welfare and development.  That presumption could be rebutted in circumstances of where there are allegations of family violence and/or child abuse.  The family law amendments have the effect of removing the presumption such that the presumption no longer remains in place. Instead, the starting point for whether the Court should make a decision of parental responsibility with one parent or with both parents jointly will be based on what is in the child/ren’s best interests.

The court will no longer use the term ‘equal shared parental responsibility’ and instead the court can still make an order for parties being jointly responsible for the decisions which affect the children’s care welfare and development. We do not know yet, whether that will mean that the legislative change in the Act will mean that there will be a shift in the Judge’s discretions and considerations as to whether to make an order for joint parental responsibility, or whether it will affect the Family Report writers/Single experts when they recommend whether it should be joint or not.  At the end of the day, the decision as to parental responsibility was and will still be a matter of the individual facts of the case, and whether it was in the children’s best interests.

In dealing with parental responsibility, the Court will still be able to make Orders for parents to have ‘joint’ or ‘sole’ parental responsibility for the decisions that affect the children’s long term care welfare and development. Where there used to be a presumption for equal shared parental responsibility, the Court now focuses on what is in the children’s best interests as a starting point.

The new Act will provide that where there is no order for parental responsibility, and if the Court has not ordered otherwise, parties are encouraged to make decisions about their children’s long-term care, welfare and development jointly. The section of the Act acts as an encouragement and guidance and not necessarily a mandatory requirement.

It may reignite fears of parents, that one parent might now try and exclude the other parent from being involved in the decision-making. If this was the case, the parties could refer the other parent to the new section which encourages parents to still both be involved in the decision making or should consider seeking legal advice about having orders in place.

Priority of Safety

The other changes to the Family Law Act have been based on the priority of safety.  Whilst it is my view that the Family Law Courts have always prioritised the safety of children, and the safety of family members, in their decision making and in the current Act, it is clear that the reference to safety is prioritised.

The other basis of change to the Family Law Act have been to draft the considerations so they are simpler and easier for the Judiciary, the legal profession and for the parties, to understand, particularly when there is an increasing number of self-represented litigants.

How will my parenting case be decided after the new changes?

Before 6 May 2024, the case of Goode and Goode prescribed a ‘legislative pathway’ that the court was required to follow when considering matters of equal shared parental responsibility and the requirement to consider first equal time and then substantial and significant time.  There was always a confusion with the public perception that equal shared parental responsibility meant equal time.  If there was equal shared parental responsibility, there was a requirement for a Court to consider equal time as a starting point. This was always, however, still subject to what is or was best for the child in the circumstances of the case.  The new changes removes the pathway and removes the reference a ‘parenting spending substantial and significant time’ from the Family Law Act.

When dealing with parenting matters, the Court will have to take into consideration the following:

Firstly, the object of Part VII of the Family Law Act.

  • To ensure that the best interests of children are met, including by ensuring their safety; and
  • To give effect to the Convention on the Rights of the Child (CRC),

When making parenting orders the Court must regard the best interest of the child as a paramount consideration.  This principle is not a new principle and has always been the guiding principle in dealing with parenting maters.

When determining parenting arrangements the Court must now consider the following six factors: 

  1. What arrangements would promote the safety (including the safety from family violence, abuse, neglect, or other harm) of the child; and each person who has the care of the child;
  2. Any views expressed by the child;
  3. The developmental, psychological, emotional and cultural needs of  the child;
  4. The capacity of each person who has or is proposed to have the parental responsibility for the child to provide for the child’s developmental, emotional and cultural needs;
  5. The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
  6. Anything else that is relevant to the particular circumstances of the child.

There are now only 6 factors/considerations, rather than the two primary considerations and the 14 other secondary additional considerations.

There are also two stand alone provisions; being

  • In reference to any relevant or past family violence orders; and
  • Rights of Aboriginal and Torres Strait Islander children to enjoy their culture;

As an overview, it is my view, that whilst the way the Court will be required to deal with the matter has changed, the issues that are relevant to the dispute appear to be largely the same.

There are a number of other changes to the Family Law Act that will come into effect from 6 May 2024, I have only highlighted the changes that relate to determining what Parenting Orders to make, for greater detail on these changes please read the follow on article here as it covers how the considerations have changed in comparison to the old law. 

For a Fact Sheet from the Attorney General Department select from the options below:

  • Click here for the Fact Sheet for legal professionals, or
  • Click here for the Fact Sheet for parties/parents and litigants.

If you are concerned about how the new changes affect your current parenting arrangements, feel free to reach out and contact me, or to speak with one of Solari and Stock’s experienced Family Law Solicitors please contact us on 02 8525 2700 or click here to request an appointment.

Article by Nicole Quirk
Photo by Kevin Gent on Unsplash